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6 Reasons to Keep Pursuing VA Claims and Appeals – AFTER you reach 100%

VA Disability, VA Law

Chris Attig talks to you about a question that a lot of Veterans ask him: If I get a 100% rating, should I continue pursuing my VA Claims for benefits?

Let’s jump right into the answer. Many Veterans perceive the 100% rating as the end of the line. The sign of victory over the Hamster Wheel. But….….is it REALLY over when you get to 100%?  Well, the hard part sure is over…but I think that there are several reasons to keep on fighting – even after you reach 100%. Let me tell you about 6 of those reasons…[Reprinted here with permission from Veterans Law Blog ]

Scenario #1:  100% TDIU May Not be Permanent

There are several paths to a 100% rating in VA Compensation – one of the most common is the TDIU 100%. 

TDIU – also known as “Total Disability Individual Unemployability” – is a 100% rating awarded when a Veteran’s service-connected disability (or a combination of disabilities) renders that Veteran unable to procure substantially gainful activity. 

You can read more about TDIU on the Veterans Law Blog or download the Veterans Law Blog’s TDIU Field Manual eBook.

When a Veteran is awarded TDIU, there is no guarantee that TDIU 100% will last forever. 

In fact, if the Veteran does not submit the annual income statements, or if the VA gets evidence that the Veteran is engaged in substantially gainful employment, the VA could reduce the Veteran’s rating to the combined rating in place prior to the TDIU grant.

It is almost always preferable to have a schedular 100% – meaning that your 100% rating is based on the schedule of impairment ratings for disabilities and not on the circumstances of your employment.

So, even if you get approved for 100% based on TDIU, you might want to consider pursuing a schedular 100% rating seriously.

Schedular ratings become “protected” at certain points – again, too much detail for this post – but there are times when the VA can no longer reduce a 100% rating.

Takeaways

  • Do not pursue a rating % as your goal in your VA Claims and Appeals …. instead, seek to service connect every disability that resulted from your military service.
  • When you have achieved that goal – all conditions that can be service connected are, all impairment ratings are properly assessed, and all effective dates are properly selected –  that is when I say a Veteran should stop fighting for the VA Benefits to which they are entitled.

Scenario #4: Protection against Future Reductions

We all know that the VA loves to reduce benefits – often for no reason at all.

There’s not a week that goes by that I don’t talk to at least one Veteran who was rated 100% – schedular – and then the VA comes out of nowhere and reduces them to 0%.

Often, when I dig into the C-File for these Veterans, I find other conditions that were improperly rated in the past or that the Veteran gave up on when they received their 100% rating.

The Veteran might not have seen any reduction in disability compensation when the VA reduced the rating on another condition.

Here’s an example I saw a couple of years back.

A Veteran – presumed exposed to Agent Orange – had both Ischemic Heart Disease and Prostate Cancer.  Both conditions were severe enough that the Veteran should have been rated at 100% for EACH condition.

However, following VSOs advice, the Veteran gave up his claims and appeals for the Heart and Prostate conditions after the VA awarded TDIU for the Veteran’s back condition. 

A couple of years later, the Veteran reported income to the IRS from a side project he was working on.  It wasn’t a lot of income, but it was enough to show that the Veteran was able to participate in Substantially Gainful Activity,  even with his 60% disabling back condition. 

The VA cut his 100% rating down to 60%. 

Related

Scenario #2:  A 100% rating doesn’t get you the right Effective Dates

When I teach Veterans how to pursue an appeal for a denied claim, here’s the “order of battle” I teach:

  1. Get your medical conditions service connected.
  1. Make sure the VA assigns the correct Impairment Rating.
  1. Fight for the earliest effective date possible.

Those last 2 often go hand in hand. But, many times, the VA will grant you a 100% rating – TDIU or schedular – and not give you the earliest effective date possible. At 100%, past due benefits can really start to add up. 

Using the 2014 disability rate tables, a single Veteran loses out on $2,906.83 each month. If the Veteran misses your correct effective date by 1 year, this means they are shorting a single Veteran $34,881.96.  Double that for 2 years.

My point is this – just because the VA got your rating to 100% doesn’t mean that they gave you the right effective date. If you give up the fight early, you might be leaving a lot of benefits on the table.

Scenario #3: Special Monthly Compensation

Not many Veterans have ever heard of Special Monthly Compensation.  And so many Veterans don’t pursue it when they get their 100% rating.

To be quite honest, far too many VA Raters haven’t heard of (or don’t correctly compute) Special Monthly Compensation.

Special Monthly Compensation is complicated – but generally, it works like this.

When a Veteran receives a 100% rating, the VA is supposed to consider whether they might be eligible for additional payments known as Special Monthly Compensation.

There are many different kinds of Special Monthly Compensation (SMC), but here are a few:

Statutory SMC – also known as SMC(s), is one of the more common types of SMC.  It is commonly known as “Statutory/Housebound” SMC because there are 2 ways to get it.

First, when a single Veteran with no kids has one 100% rating and at least a 60% rating for a wholly separate condition/disability, that Veteran is entitled to an additional $347 a month in VA disability (using the rating tables effective 12/1/2014).  This is the “Statutory” method of getting SMC(s).

Second, if a Veteran is housebound because of a service-connected disability, that Veteran may be entitled to SMC(s) on a “housebound” basis.  The VA’s definition of housebound is rather precise and is discussed elsewhere on the Veterans Law Blog.

Loss – or loss of use – of extremities, sensory organs, and/or reproductive organs might entitle one to Special Monthly Compensation as well as could the need for Aid & Attendance.

The highest levels of Special Month Compensation can take a 100% Veteran as high as $8,859.84 a month – these Veterans are usually in pretty bad shape.

Even still, I’ve seen the VA “stiff” Veterans that are housebound, bed-bound, and quadriplegic out of Special Monthly Compensation.

This happens, most often, when a Veteran stopped fighting for their benefits after reaching 100%…..far too many Veterans think that is the highest level of compensation available.

Related

Scenario #5:  Secondary Service Connection

The rare veteran is pursuing service connection for just one condition.

But when a Veteran gets to 100% on just condition, many VSOs, some attorneys, and other Veterans often say the Veteran should give up their other claims or appeals so they “don’t rock the boat.” 

Be happy with what you got. They’ll often tell you.

Here’s the story of a veteran who wishes he hadn’t listened to that advice.

The Veteran had a renal (kidney) condition that resulted from his exposure to certain chemicals in the military.  He also had a claim in for Hepatitis C that, at the time, would not have given him much more of an impairment rating.

So when he got a 100% rating for the renal condition, he withdrew the Hep C claim on the advice of his VSO.  This is not at all an uncommon scenario (perhaps you have been the victim of this common VSO tactic).

When the Veteran was diagnosed years later with liver cancer, he thought it might be related to his Hepatitis C. His doctors agreed with him: Liver Cancer is a common consequence of chronic Hepatitis C.

The Veteran in the story above spent the last 6 months of his life trying to get the Hepatitis C Service Connected so that he could show that the liver cancer was secondary to that Hepatitis C. 

During a time in his life when the Veteran could have used the extra Special Monthly Compensation that he should have received for two 100% disabling conditions (renal condition and liver cancer secondary to Hep-C) to make his final days more comfortable for himself and his family, he was battling a VA Bureaucracy that could not – or would not – move quickly enough.

Here’s the take-away point: if you believe in a service-connected condition, continue to pursue that service connection even if it will only give you a 10%  (or a 0%) rating today.

Tomorrow may be the key to showing that another condition – one that is much more serious – is service-connected.

Scenario 6: Continue Battling the VA to Make It Easier  For Your Survivors

My law firm represents a LOT of Surviving Spouses of deceased Veterans.  

They are my favorite types of cases.

That’s because I have an ax to grind with the VA – when my grandfather died from an injury he sustained at the Battle of the Bulge, the VA and several VSOs told my grandmother that there was nothing they could do to help her or her 5 children. 

They were wrong – the VA and those big national VSOs could have helped and changed the course of my grandmother’s life instead of lying to her.

In the course of representing a lot of surviving spouses, I see the same scenario play out time and time again. Here’s that scenario:

A Veteran dies from a medical condition.  The medical condition that contributed to his death was related to the Veteran’s service in the military.

The Veteran gave up his claim for service connection of that condition because he reached 100% on another condition. 

To get DIC benefits, the Surviving Spouse almost always has to start from scratch to prove the condition that killed the Veteran was service-connected.

If a Veteran dies from a service-connected condition, the surviving spouse is entitled to a benefit called “Dependency and Indemnity Compensation.”

It’s a monthly benefit that is often misleadingly called “Service Connection of the Cause of Death.” 

Now, if the Veteran did not prove that the condition was service-connected during his or her lifetime, the spouse gets a chance to prove that it should have been service-connected.

So a Veteran’s failure to pursue service connection for the condition that ultimately killed him does not prevent the survivor from recovering survivor benefits.

HOWEVER…. it does make the claim or appeal REALLY hard for the surviving spouse.

Many times, the Veteran is the primary “bread-winner” in his or her family – when the Veteran dies, the spouse and children are left to fend for themselves. 

Most of them do find a way to eke out a living after their husband or wife dies – whether by the grace of God, the support of family, or friends.

But if the Veteran had kept up the fight with the VA while they were living, it wouldn’t have had to be so hard on the family they left behind.  The Veteran’s spouse might have had the ability to grieve the loss of their beloved without having to find replacement income to stay alive and in their home. 

The spouse might have had the ability to spend more time honoring the Veteran’s service, more time grieving, and more time healing….but instead, they spend years fighting the VA to win a benefit that they could have had if the Veteran had continued to pursue the claim while living.

So, if you get to 100%, please consider making sure that any medical condition that could likely contribute to your death is service-connected before you stop battling the VA (or make sure that there is at least a pending claim or appeal at the time you pass).

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